In March 1999, a motorist
stopped for suspicion of transporting illegal aliens across the United
States-Mexico border filed a complaint with the United States Attorney’s
Office alleging his civil rights were violated when a United States
Border Patrol Agent allegedly used excessive force on the motorist
during the traffic stop.
Even though the civil
rights complaint alleged misconduct on the part of one agent, the two
agents present during the stop were placed on administrative duties and
relieved of their service-issued firearms, identification badges and
credentials, "pending full investigation of allegations of
misconduct." The agents were "temporarily assigned to
administrative duties pending resolution of this matter."
When Agent David Dresser
met with the assistant United States attorney assigned to the
investigation he was told he was not a suspect, but a witness.
Additionally, in correspondence from the United States Attorney’s
Office to LDF panel attorney James M. Gattey, the United States Attorney’s
Office stated Dresser would be treated as a witness and not the subject
of the investigation.
Although only a witness,
the Border Patrol seized Dresser’s service-issued weapon, badge and
credentials, and assigned him to administrative duty. Consequently, the
Border Patrol transferred Dresser from his night shift to the day shift
to work a Monday through Friday schedule. Because of the transfer,
Dresser suffered a reduction in pay due to the loss of his shift
differential and weekend premium pay rates he was receiving before being
transferred to the day shift. Agent Dresser’s pay records demonstrated
that because of his assignment to administrative duties, the Border
Patrol had effectively reduced his pay by approximately 30 percent.
Because of this substantial loss of pay resulting from the assignment to
administrative duty and the likelihood of the Border Patrol continuing
this practice, National Border Patrol Council Local 1613 asked the PORAC
LDF to authorize coverage for Dresser to pursue a grievance against the
Border Patrol. LDF panel attorneys James M. Gattey and Patrick T.
Cooney, of the Law Offices of James M. Gattey handled Dresser’s
grievance.
In his grievance, Dresser
contended that under the provisions of the Collective Bargaining
Agreement (CBA) between the National Border Patrol Council and the
Immigration and Naturalization Service, a reduction in pay constituted
"adverse action" which can only be imposed for cause.
Furthermore, before taking adverse action the Border Patrol is required
to provide the agent with the materials supporting the action and give
the agent an opportunity to reply to the allegations of misconduct.
Dresser was never advised of any determinations of misconduct which the
Border Patrol could assert as cause for its imposition of adverse
action, nor given an opportunity to review and respond to any
allegations of misconduct. Therefore, Dresser argued the Border Patrol
had not provided him with due process before imposing disciplinary
action.
In addition, the CBA
requires notice of proposed adverse action "at the earliest
practicable date after the alleged offense has been committed," but
that it is "understood criminal investigations outside the control
of the employer may be prolonged." However, if the investigation is
prolonged, "the employer must furnish notice at the earliest
practicable date after the employer has obtained control of the matter
under investigation." Dresser asserted in his grievance that the
Border Patrol had the ability to conduct an administrative investigation
of allegations of misconduct at any time, regardless of whether a
criminal investigation was being conducted by a prosecuting agency.
Dresser argued the only
"investigation" asserted by the Service as the basis for
reducing Agent Dresser’s pay must be the one conducted by the United
States Attorney’s Office. Dresser pointed out the prosecutor
acknowledged he was neither a target nor a subject of its investigation.
Dresser was simply a witness. Thus, the only investigation of the
allegations of excessive force had concluded Dresser was simply a
witness. Therefore, there were no allegations of misconduct pending
against Dresser that could possibly serve as the basis for the Border
Patrol’s imposition of adverse action.
Not surprisingly, the
chief Border Patrol agent of the San Diego Sector rejected Dresser’s
grievance. The grievance met a similar fate before the regional director
of the INS. However, before an independent arbitrator was selected to
hear the grievance, the chief Border Patrol agent of the San Diego
Sector, issued a memorandum. It stated that when an agent is assigned to
administrative duties pending a criminal or internal investigation, the
agent must continue to be paid at the rate of the regularly assigned
shift, including administratively uncontrollable overtime and night
premium pay.
As a result of the chief’s
memorandum, Dresser’s time and attendance reports were amended and he
received all lost night premium and differential pay resulting from the
Border Patrol’s decision to place him on administrative duty and
remove him from his regular assignment.
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